Ross v. Bank of America: Important Victory for Consumers Subject to Arbitration Provisions

Jean Sternlight, Saltman Professor, UNLV Boyd School of Law &
Director Saltman Center for Conflict Resolution, brought to my attention the Second Circuit’s recent decision in Ross v. Bank of America, — F.3d —-, 2008 WL 1836640 (C.A.2 (N.Y.). According to Jean:

“[I]t is the most important victory in recent years for consumers seeking to challenge mandatory arbitration provisions. Ross recognizes that antitrust laws offer an entirely new means for challenging mandatory arbitration provisions that consumers allege to be unfair and unjust. Where, as plaintiffs allege in Ross, essentially an entire industry (such as the credit card industry) has chosen to impose individual binding arbitration on its customers, the Ross decision offers the possibility that companies who allegedly conspired to limit consumers’ dispute resolution choices can be held culpable civilly or criminally for violating antitrust laws. As antitrust law makes available not only injunctive relief but also treble damages, and attorney fees, it may be a powerful tool for reining in industries intent on limiting consumers’ procedural options. Potentially such antitrust suits can be brought in other industries, such as securities, nursing home, cell phones, or auto dealerships, where the allegation has been made that it is difficult or impossible for consumers to secure a particular good or service without giving up the opportunity to resolve future disputes in court and through class actions, rather than through individual arbitrations. While the Ross decision is limited to the question of whether plaintiffs’ claim states an adequate claim of damages to demonstrate Article III standing, I believe that by allowing plaintiffs’ claim to withstand this motion the Second Circuit has opened companies who impose mandatory arbitration and eliminate class action remedies to an entirely new type of challenge. Perhaps, fearing antitrust claims, some companies may now hesitate to impose mandatory arbitration on their customers.”

One thought on “Ross v. Bank of America: Important Victory for Consumers Subject to Arbitration Provisions”

  1. Thanks for posting the above case on Ross vs. BofA. I have a dispute with BofA, which they have only offered to review the situation by a faxed letter… no access to meeting with any representative until after their “4-5 week” review process. WOW!

    Here’s the rub: My 76-y.o. mom is declining in her mental capacity. I have just recently taken over her banking accounts to find “3rd party providers” have for more than 4-years, been collecting about $35 a month on two programs offered by the bank, which provides an automatic writhdrawl from her checking. They say no signature was required for these transactions. She has NO information on what “Accidental Disability Benefits policy or the Best Health Discount Program covers.
    There is no firewall between these elderly people who trust their bank and these “3rd party” plans and programs.

    Check out Coverdell’s website, BofA’s “3rd party plan administrator”. They will not put any of our conversation in writing and offer no details on their “Partnership Agreement” with the bank. When I asked for a copy of the Disability Benefits policy, they informed me that it, just this month, had been pulled and no policy information is available. That sure was convenient.

    This leads me to believe there are a whole lot more people out there who are paying for a policy that doesn’t exist any more, don’t have any idea what they are buying, and never signed an agreement that authorized any of this. Neither the policy or program is available on the web, in the light of day.

    Is this class-action worthy for someone to take on contingency? Let me know.

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